The first meeting of the Historic Abuse Litigation Forum took place last Friday, the 2nd December 2016.
The Forum was set up by Master Victoria McCloud in the High Court in London to try and improve the experience of litigation for survivors of historic child abuse.
A number of Claimant and Defendant firms have come forward to sit on these Groups. I am responsible for coordinating the Claimant Group. At present the Forum has just under 60 members.
Master McCloud is responsible with her colleagues in the High Court for managing litigation cases that are proceeding to trial through the courts. She is uniquely qualified to observe what goes wrong in litigation, and with that in mind, she wants to try and change things for the better. For instance those litigants who are making claims arising out of the disease, asbestosis, have their own particular procedure in the courts, which is designed to smooth over the way and speed things up.
Litigation is a two way process, which means that both Claimants and Defendants have rights. This is not a forum that is set up solely to represent the views of Claimants.
The Master was concerned with a number of issues, which she categorised into groups for discussion.
Group A: Anonymity Orders
By and large, the courts will allow survivors complete anonymity when they litigate and that protection is already guaranteed by Acts of Parliament. So for instance, the press are not allowed to reveal the name of a victim of a sexual offence or the parties in a family court case. This Group will look at making that protection as strong as possible.
Group B : Disclosure
A person coming out of social care will typically have multiple files of papers, all of which have to be sorted and checked they are released to his or her lawyers. Local authorities have responsibilities under the Data Protection Act 1998 to protect the rights of other people identified within the social services notes. This means having to go through all of the records redacting names or information that identifies someone who is not the Claimant. This is a process that can take many months, and in one case I handled, it took years. The Forum is going to try and find a swifter way of getting this process up and running.
Group C : Protective Issue of Claims
Normally a person has three years from their 18th birthday to issue a court claim, if they are to stay within the limitation period. Most solicitors handling these claims will have stories of having been approached by people, a few days off their 21st birthday, and having to run off to court to issue proceedings in court. The court fee can be very high, up to £10K, although a fee exemption is available for the poorest. One way around this problem is to agree a limitation moratorium so that the Claimant does not have to issue proceedings by agreement with the Defendant.
Group D : Alternative Dispute Resolution
"ADR" as it is known, is a way of settling a claim before it goes to trial. This may involved meetings between the two side, or some kind of mediation. One of the ideas put forward by the Forum, is to try and create a procedure whereby claims can be settled quickly and at low expense. At present discussion is taking place about how to create a "Historic Abuse Resolution Procedure" which will meet those aims.
Group E : Reducing delay and Group F : Vulnerable witnesses and parties
Delay and vulnerability are two particularly important issues for those who instructed solicitors in these difficult and emotional cases. The legal process is all too often, baffling for those who find themselves in the midst of litigation. Trial is a particularly damaging event for survivors. One of the ideas put forward is that there should be a presumption that special measures i.e giving evidence behind screens or by video link will be obtained for trial.
Group G : Costs and proportionality
The time spent on these cases can be astronomic, not only by the solicitors, but by the social care experts who are instructed to advise on whether a local authority has been negligent. All of this costs money, and the courts keep an eye on the damages, which they then compare to the costs. So if you have a £50K damages claim, you may not be allowed to spend more than £100K getting to trial.
Group H : Experts and Professional Witnesses
Sometimes in litigation, the Claimant and the Defendant will agree a "joint expert" to advise on a particular issue. This is not popular in child abuse cases, because there is often such a big difference between what the experts are saying. One psychiatrist may say that the abuse suffered has had a marked effect on the Claimant, and another may say just the opposite. Master McCloud wants this Group to look at whether a joint list of experts can be agreed in these cases. Where psychiatrists are instructed, this can mean that the Claimant only has to be examined once.
The way forward
In any event, Claimant and Defendant firms of solicitors formed themselves into two groups to meet over the next month and discuss each of these issues with a view to a plenary meeting with Master McCloud. Barristers are also involved in the process from both sides of the litigation fence.
The first meeting of Groups A and B took place last Friday, the 2nd December, and three more are set for December. After these meetings have taken place, it is expected that a full plenary meeting will take place to discuss the way forward. This should happen in January 2016.
Is this Forum linked to the Inquiry into Institutional Child Sexual Abuse?
No, the Inquiry is well aware of the Forum, but they are quite separate.
Malcolm Johnson, Specialist Child Abuse Lawyer